Court of Appeals upholds Whitmer’s emergency powers in 2-1 decision

The Michigan Court of Appeals on Friday ruled 2-1 in Gov. Gretchen Whitmer’s favor in a lawsuit led by Republican state legislators, who have sought to strip away the emergency powers she has used to make decisions during the COVID-19 pandemic.

The case is likely to be appealed and next go to the Michigan Supreme Court. The opinion on Friday by the Court of Appeals upholds a lower state Court of Claims ruling issued in late May. 

The COA panel found that Whitmer, a Democrat, was within her right to make pandemic decisions under the 1945 Emergency Powers of Governors Act (EPGA). It also found that the law and Whitmer’s use of it to issue executive orders does not violate the Separation of Powers Clause laid out in the state Constitution, as GOP legislative leaders argued when filing the lawsuit. 

“Proceeding on the assumption that the Legislature had standing to file suit, we hold that the Governor’s declaration of a state of emergency, her extensions of the state of emergency, and her issuance of related EOs [emergency orders] clearly fell within the scope of the Governor’s authority under the EPGA,” the court wrote. 

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Judges declined to address whether Whitmer was also authorized to make decisions under the Emergency Management Act (EMA) of 1976 and chose not to decide if she violated that statute, calling both matters “moot.”

Judges Jane Markey, Kirsten Frank Kelly and Jonathan Tukel ruled in the case, with Markey and Kelly writing the majority opinion. Tukel dissented. 

The case was filed by the Legislature, which is controlled by Republicans. However, both the Senate and House Democratic caucuses have sided with Whitmer in the case. House Minority Leader Christine Greig (D-Farmington Hills) said Friday that the decision showed “it is past time for the legislative Republicans to abandon their wasteful political antics and focus on addressing the ongoing deadly pandemic and ensuring Michiganders have the resources they expect, and frankly deserve.”

Michigan Court of Claims Judge Cynthia Stephens tossed the Legislature’s lawsuit in late May, calling the legal challenge “meritless” and writing in a 25-page opinion that Whitmer retained the authority to issue orders under the EPGA.

However, Whitmer did not have the authority to re-declare a state of emergency under the EMA, Stephens said.

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Those two laws, but mostly the EPGA, have been used as basis for Whitmer’s emergency orders during the pandemic, which has killed more than 6,300 Michiganders and sickened more than 94,000.

The EPGA allows a governor to declare a state of emergency without the Legislature’s approval, but the lawsuit in question challenges how many times a governor is legally allowed to do that or make extensions to standing orders. The EMA also allows the governor emergency powers, but it states the Legislature must approve any extensions of an emergency declaration beyond 28 days.

Tiffany Brown, the governor’s spokesperson, called Friday’s COA ruling a “complete and decisive win.”

“This decision recognizes that the Governor’s actions to save lives are lawful and her orders remain in place,” Brown said. “… She will continue to do what she’s always done: take deliberate, measured actions to protect Michiganders from this unprecedented threat. This lawsuit is a dangerous and costly attempt to take away the governor’s power to respond to the COVID-19 emergency and save lives.”

However, in a Friday tweet, state Speaker of the House Lee Chatfield (R-Levering) said the Court of Appeals “got it wrong” and confirmed he and other plaintiffs will take the case to the Michigan Supreme Court. 

Chatfield joined state Senate Majority Leader Mike Shirkey (R-Clarklake) in May to file the legal challenge against Whitmer after they received a go-ahead from the Legislature. 

https://twitter.com/LeeChatfield/status/1296833024051601408

In another tweet, Chatfield claimed the judges’ decision was “unconstitutional.”

“The Court of Appeals ruled today that as long as it’s the opinion of a sitting governor that there’s an emergency, they can take over complete, unilateral control of the state for as long as he or she decides. No checks on power. No separation of power. This is unconstitutional.”

However, attorney Bob LaBrant, a longtime Republican and former vice president of the Michigan Chamber of Commerce, wrote in a Detroit Free Press op-ed that the Legislature’s legal challenge to Whitmer is “irresponsible” and said she had hit the crisis “head-on.”